“Knowing when an employee may be entitled to take time off for medical reasons or whether an employee’s entitled to some type of accommodation for a disability can be very, very confusing—especially for the people on the front lines:your company’s supervisors.” Joseph Wilson pointed out in a recent CER webinar.
California employers have to understand their obligations under both the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA)—and while the two overlap, understand the differences as well.
Differences in coverage between ADA and FEHA
Generally, the American with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) are both acts that protect disabled workers from discrimination. They provide similar protections which forbid employers from discriminating against a qualified employee on the basis of an employer’s disability. There are, however, some differences you should be aware of:
“ADA applies only to employers who have 15 or more employees for each working day in each of 20 or more calendar weeks” in the current or preceding year, Wilson noted. FEHA, on the other hand, applies to employers with 5 or more employees.
This means FEHA is broader and will apply to a lot more employers. As such, anyone in California who is subject to ADA will also be subject to FEHA, but not vice versa: employers with 5 to 14 employees would only be subject to FEHA.
Under the ADA, a disabled person is someone who has a physical or mental impairment that substantially limits how that person can perform a major life activity (as compared to the average person).
Under FEHA, employees with a condition that limits a major life function are protected, regardless of whether the limitation is substantial. FEHA provides a little more protection for employees in this way.
One area where both statues are alike, however, is that mitigating measures cannot be considered.
“Under both the ADA and FEHA, an employee is considered disabled regardless of their use of medication, technology, or assistive devices used to mitigate the effect of the condition.” Wilson noted. In other words, even if a disability is controlled through medication or devices, they are still entitled to protections.
Getting ADA/FEHA protection: Disclosure required
“To be protected by the ADA or the FEHA, the employee must disclose the disability to someone who represents the employer, such as a supervisor or a human resources person.” Wilson explained. The employee is not required to disclose to coworkers or anyone else, but the employer must know about the disability – or even suspect it – for the employee to have protections.
Remember: any medical information disclosed by an employee must be kept confidential, and can only be given to supervisors and managers who need to know about the accommodation and any restrictions on the employee’s work or duties. This is important to train your team because even a well-meaning disclosure can cause problems.
The above information is excerpted from the webinar “Leave, Disability & Workers’ Comp in California: Tips for Successfully Navigating the Tricky Triangle.” To register for a future webinar, visit CER webinars.
Attorney Joseph Wilson is a founding partner of Curiale Wilson LLP in San Francisco. His practice is focused on employment defense litigation, including misclassification, wage and hour claims, discrimination, wrongful termination, harassment, California Private Attorney General Act (PAGA) actions, and breach of contract cases.